Citation Nr: 0120271
Decision Date: 08/07/01 Archive Date: 08/14/01
DOCKET NO. 94-09 361 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Cheyenne, Wyoming
THE ISSUES
1. Entitlement to service connection for disability
manifested by chronic memory loss, as secondary to Halcion
therapy for service-connected disability.
2. Entitlement to service connection for disability
manifested by chronic speech delays, as secondary to
Halcion therapy for service-connected disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
R. Giannecchini, Associate Counsel
INTRODUCTION
The veteran had verified active military service from March
1959 to May 1962, from November 1963 to February 1968, and
from March 1968 to October 1971. This matter came to the
Board of Veterans' Appeals (Board) on appeal of a March 1993
rating decision of the Department of Veterans Affairs (VA)
Regional Office (RO) in Salt Lake City, Utah. Jurisdiction
over the veteran's claims folder was subsequently transferred
to the Medical and Regional Office Center (M&ROC) in
Cheyenne, Wyoming. In July 1999, the veteran testified
before the undersigned Member of the Board at a hearing at
the M&ROC. In December 1999, the Board remanded the
veteran's claims to the RO for additional development. The
case was returned to the Board in May 2001.
FINDINGS OF FACT
1. All available information and evidence necessary for an
equitable disposition of the veteran's appeal has been
obtained by the RO.
2. The veteran does not currently have disability manifested
by chronic speech delays.
3. Chronic memory loss, if present, was not caused or
chronically worsened by Halcion therapy for service-
connected disability.
CONCLUSIONS OF LAW
1. Disability manifested by chronic speech delays is not
proximately due to or the result of Halcion therapy for
service-connected disability. 38 U.S.C.A. § 5107 (West
1991); Pub. L. No. 106-475, § 4, 114 Stat. 2096, 2098-99
(2000) (to be codified as amended at 38 U.S.C.A. § 5107);
38 C.F.R. § 3.310 (2000).
2. Disability manifested by chronic memory loss is not
proximately due to or the result of Halcion therapy for
service-connected disability. 38 U.S.C.A. § 5107 (West
1991); Pub. L. No. 106-475, § 4, 114 Stat. 2096, 2098-99
(2000) (to be codified as amended at 38 U.S.C.A. § 5107);
38 C.F.R. § 3.310 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that during the pendency of the
veteran's appeal, the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was
signed into law. This liberalizing law is applicable to the
veteran's claims. See Karnas v. Derwinski, 1 Vet. App. 308,
312-13 (1991). It essentially eliminates the requirement
that a claimant submit evidence of a well-grounded claim, and
provides that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim but is not required to
provide assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. It also includes new notification provisions.
Specifically, it requires VA to notify the claimant and the
claimant's representative, if any, of any information, and
any medical or lay evidence, not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
and the claimant's representative, if any, of which portion,
if any, of the evidence is to be provided by the claimant and
which part, if any, VA will attempt to obtain on behalf of
the claimant.
The record reflects that the veteran has been informed of the
requirements for the benefits sought on appeal, the
information and evidence that he should provide to VA, and
the evidence that VA will obtain on his behalf. The RO has
obtained all pertinent records identified by the veteran and
provided him with an appropriate VA examination. There is no
outstanding information or evidence which should be obtained.
In sum, the facts relevant to these claims have been properly
developed and there is no further action to be undertaken to
comply with the provisions of the VCAA.
I. Factual Background
A review of the veteran's claims file reflects that in an
October 1972 rating decision, the RO granted service
connection for depressive reaction.
VA treatment records reflect treatment of the veteran with
Halcion beginning in June 1990. A treatment record, dated
that month, notes a diagnosis of adult situation reaction and
that the veteran was prescribed 0.25 milligrams (mgm) of
Halcion to help him sleep. Subsequent treatment records,
dated in December 1990, January 1991, March 1991, and
September 1991, also reflect prescriptions for Halcion.
In October 1991, the veteran underwent an EEG
(electroencephalogram) of his brain, following complaints of
short-term memory loss. An EEG report notes a borderline
abnormal study for excessive slowing of background rhythm
which was suggestive of a toxic, metabolic, or diffuse
structural problem. That same month, a CT (computer
tomography) scan of the veteran's brain revealed possible
bifrontal white matter disease, but was otherwise normal.
Also in October 1991, a VA treatment note reflects a
diagnosis of memory loss secondary to antecedent toxins,
noted as possibly being alcohol.
Additional VA treatment records reflect that in November
1991, the veteran underwent a mental health evaluation. He
was noted to complain of slow thinking, loss of memory, and
speech delay. It was reported that the veteran had suffered
a head injury in service which had resulted in a loss of
consciousness. The doctor was unsure of the etiology of the
memory loss, and referred the veteran for an additional
evaluation. A psychology evaluation report prepared that
same month indicates that the veteran suffered from severe
depression and introspection/obsessiveness, which probably
accounted for his cognitive complaints. Furthermore, while
the EEG and CT scans were seen as troublesome, further
neuropsychological testing was reported as not being
warranted.
In April 1992, the veteran submitted to the RO a VA Form 21-
4138 (Statement in Support of Claim) in which he filed claims
for service connection for memory loss and speech delays, as
secondary to the taking of Halcion in conjunction with his
service-connected depressive reaction. The veteran reported
that the Halcion had been prescribed for him by a VA
psychiatrist in the spring of 1989, and the taking of the
drug, he felt, had resulted in brain impairment. He
indicated that he had stopped taking Halcion in January 1992.
Additionally, the veteran submitted with his statement a
transcript of the television program "60 Minutes," which
had aired in December 1991. The program included a video
news story questioning the safety of Halcion. It was
reported in the story that severe psychiatric problems
developed from the use of Halcion such as memory loss,
paranoia, and depression. The veteran also submitted a copy
of a newspaper article which notes the actor Burt Reynolds
had had a near fatal addiction to the drug.
In June 1992, the veteran underwent a VA psychiatric
evaluation. The examiner noted that the veteran suffered
from depression, and that he had suffered from some type of
temporary memory loss and speech problems due to Halcion.
However, the examiner further reported that the problem had
been resolved after the Halcion had been discontinued.
In October 1993, the veteran submitted to the RO a VA Form 9
(Appeal to Board of Veterans' Appeals), in which he noted
that he continued to suffer from the aftereffects of Halcion,
and his condition had hindered his employment ability,
restricted his ability to officiate basketball games, and
continued to effect his memory.
Additional VA treatment records reflect that in October 1995,
the veteran was administered memory assessment tests. The
veteran's scores were noted to indicate some deficits
existing in his memory abilities. Specifically, there were
indications of difficulties in the veteran's ability to
attend to, and concentrate on, information over relatively
brief periods of time.
In July 1999, the veteran testified before the undersigned
Member of the Board during a travel Board hearing. He
reported that every now and then he would have mental lapses.
He found himself becoming anxious about conversing with
anyone for too long a period of time, because he would go
through a mental block and speech-delay problems. The
veteran stated that his treating VA psychiatrist had reported
that the Halcion effect had been short-lived, and that he
currently did not have any problems. The veteran testified,
however, that he still suffered from memory and speech
problems, but couldn't predict when his mental lapses would
happen.
Thereafter, the RO received a number of pages, apparently
from an internet source, of the Physician's Desk Reference.
These pages concerned the taking of Halcion and other similar
drugs. In particular, it was noted that a variety of
abnormal thinking and behavior changes had been reported to
occur in association with the use of Halcion.
In October 1999, the veteran was administered an additional
memory test at the Cheyenne VA Medical Center. He was noted
to have done well on the Digit Symbol-Coding subtest, thought
to be the WAIS-III subtest most sensitive to cognitive
dysfunction. His scores on the Block Design and Matrix
Reasoning subtests were consistent with his other subtest
scores, indicating that the results were an accurate
indication of ability, even with possible cultural
differences. Results on the WMS-III ranged from average to
low average for different types of auditory and visual memory
abilities. These findings, it was reported, did not
conclusively indicate memory deficits beyond that expected
for the veteran's age group, and indicated that if memory
difficulties existed, they were very subtle. The veteran was
noted to have reviewed the test findings and to have
indicated that he felt he had had more of a problem in the
early 1990's with his memory and had gotten over it somewhat.
In June 2000, the veteran underwent a VA mental disorders
examination. The examiner reported that there was no
impairment of immediate, recent, or remote memory. Rough
screening of immediate memory was within normal limits. The
veteran was able to recall digits forwards and backwards, up
to six digits forward and five digits backwards. The veteran
reported that he began noticing difficulty with concentration
and memory problems somewhere around 1989 to 1991. He
indicated a significant increase in his depression at the
time of his father's death in 1989. The examiner diagnosed
the veteran with dysthymia, mild to moderate in severity.
II. Analysis
The veteran essentially contends that service connection is
warranted for memory loss and speech delays because they were
caused by Halcion prescribed for his service-connected
depressive reaction.
Service connection may be granted for disability which is
proximately due to or the result of service-connected
disability. 38 C.F.R. § 3.310(a). Additional disability
resulting from the aggravation of a nonservice- connected
disability by a service-connected disability is also
compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7
Vet. App. 439, 448 (1995) (en banc).
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 1991); Pub. L. No. 106-475, § 4,
114 Stat. 2096, 2098-99 (2000) (to be codified as amended at
38 U.S.C. § 5107(b)); 38 C.F.R. § 3.102 (2000).
Although the veteran is competent to provide testimony
concerning matters susceptible to lay observation, he is not
competent to render a medical diagnosis or an opinion
concerning medical causation. See Espiritu v. Derwinski, 2
Vet. App. 492, 494 (1992). Therefore, the Board must rely on
the medical evidence in addressing the medical questions
presented in this appeal for secondary service connection.
See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v.
Brown, 7 Vet. App. 513, 516-17 (1995).
The veteran has reported that he was prescribed Halcion from
1989 to 1992. The medical evidence documents the veteran's
treatment with Halcion in the early 1990's. As noted above,
the record contains general information concerning adverse
side effects of Halcion therapy.
With respect to whether the veteran has chronic speech delays
and chronic memory impairment and whether these disabilities
were caused by the veteran's treatment with Halcion, the
medical evidence shows that the veteran did complain of these
symptoms on some occasions. Although memory loss secondary
to antecedent toxins was noted in October 1991, alcohol,
rather than Halcion, was identified as the possible toxin. A
VA medical examiner did opine in June 1992 that the veteran
experienced memory loss and speech problems due to Halcion,
but the examiner also opined that the problem was temporary
and resolved after the Halcion was discontinued.
Evidence of memory impairment and concentration impairment
was found on psychological testing by VA in October 1995, but
neither was identified as chronic or attributed to Halcion
therapy. No evidence of a disability manifested by speech
delay was found when the veteran was evaluated by VA in
October 1999 or June 2000. Moreover, a VA memory evaluation
in October 1999 did not demonstrate the presence of memory
deficits beyond that expected for the veteran's age group,
and no memory impairment was found on the VA psychiatric
examination in June 2000.
In fact there is no medical evidence indicating that the
veteran has a chronic disability manifested by speech delays
or that he has chronic memory impairment which was caused or
chronically worsened by Halcion therapy.
In light of these circumstances, the Board must conclude that
the preponderance of the evidence is against the veteran's
claims.
ORDER
Entitlement to service connection for disability manifested
by chronic memory loss, as secondary to Halcion therapy for
service-connected disability, is denied.
Entitlement to service connection for disability manifested
by chronic speech delays, as secondary to Halcion therapy for
service-connected disability, is denied.
Shane A. Durkin
Member, Board of Veterans' Appeals